Feminist Activism and the Charter
In the last two decades, feminist organizations such as LEAF have had relative success in applying the law for social change. Since 1982 and the repatriation of the Canadian constitution and the entrenchment of the Charter of Rights and Freedoms, women’s issues, such as equality, have been argued and defined within the judicial system. ... Although necessary for protecting minorities from the ‘tyranny of the majority’, the Charter’s active ability to change legislation should be used with caution and great care. ... The Charter of Rights and Freedoms was drafted and passed by elected powers, and, although the constitution did delegate review powers toward the judiciary, it did not however imply a reneging of political responsibilities on the part of the legislature. ... This can have some significant impact upon the Canadian system of government as well as on social policy-based organizations that rely on Charter litigation to advance their agendas. ... As mentioned, the legislature has granted these review powers under the Charter to the Courts. ... It is perhaps necessary to examine the success and failures and related problems that have arisen by the Charter litigation on the part of social policy organizations. ... Judiciary) but also in relation to the feminist movement itself. McIntyre recounts that: Despite the many flaws inherent in the legal system and feminist pursuits of justice, the legal challenges are an essentialist aspect of political negotiation. ... In other words, there is no single all-encompassing policy that situates the feminist movement and its relation to the state or to the law. ... ’ Charter litigation has provided a basis by which activist organizations are able to organize and define the pursuit of social, political, and economic equality. The editor of Feminist Activism in the Supreme Court states: …the objective of post-Charter feminist legal mobilization has been relatively straightforward: to articulate a constitutional doctrine of substantive equality and use that doctrine as the standard for evaluating the legal rules and other public policies most relevant to women’s interests. In other words, the case law developed by Charter litigation has successfully de-constructed and re-defined the terms of the legal language and the reality of governance. ... Several post- Charter cases have opened the way towards a better understanding of substantive equality and more importantly have re-interpreted the analysis methods of the courts, whereby a more reasoned and deeper contextual approach is taken to resolve issues of human dignity. ... This has created an arrested development of feminist theory and has the potential of stonewalling other venues of social policy change. ... The usurping of legislative powers by the Courts, albeit mandated by the legislature in the framing of the Charter, has nonetheless created a jurisdictional and democratic conflict, since the sovereign power of the state has been delegated to the unelected and unaccountable state body of the judiciary. This is not to suggest that Charter litigation is a useless or inappropriate tactic but rather that it is only one part of a greater strategy to advance any social policy change. ... In other words, the more recent approach by the feminist movement to develop multiple lobbying strategies and tactics, and the establishment of creative alliances to overcome internal divisions is much more in line with a pluralistic and democratic society that is searching for a meaningful manifestation of human dignity.